116 F. 285 | 7th Cir. | 1902
(after stating the facts as above). The office of all construction and interpretation of contracts is to ascertain the intention of the parties, and the meaning of the words they have used,—their real design as disclosed by the whole contract. For that purpose we may resort to surrounding circumstances and the condition of the parties at the time, not to ascertain what they may have secretly intended, but to resolve doubtful expressions and to ascertain the true meaning of the agreement. And this is to be judged, not from any separate provision or disconnected expression in the writing, but taking it in its entirety.
It is insisted for the appellant that the right acquired by Lovell to the manuscript of “The Little Minister,” so far at least as concerns the United States of America and Canada, was that of proprietor, and that therefore he had under the law the right of copyright. At the date of this contract, May 8, 1890, copyright was not authorized in this country in favor of foreign authors (Rev. St. § 4952); nor, as it would seem, could a foreign author assign or transfer to a citizen his manuscript or common-law right of property therein, so that the latter could have copyright protection within the United • States. Yuengling v. Schile (C. C.) 12 Fed. 97, 102-107. The international' copyright law granting copyright to foreign authors was passed March 3, 1891, and went into effect July 1, 1891. 26 Stat. 1106-1110, c. 565. It thus appears that the contract in question was entered into nearly ten months prior to the passage of this law. At its date Mr. Barrie had no right to acquire copyright within the United States, and could grant no such right. Nor could an assignee of his manuscript and common-law right therein acquire such copyright. It is therefore manifest that it was not, and could not have been, within the contemplation of the contracting parties to grant or to acquire a right to that which did not exist and was not the subject of a.grant. Unless, therefore, by the agreement in question Lovell became the owner and the proprietor of the manuscript, to the exclusion of Mr. Barrie’s right therein, and could avail himself, with respect to that work, of the privilege conferred by subsequent legislation, lie has no right to copyright of the work. The parties at the execution of the contract were thus circumstanced: Mr. Barrie was engaged in writing a novel for serial publication in an English magazine, to be therein published monthly, commencing with the January number, 1891. By the agreement, Mr. Barrie granted and assigned to Mr. Lovell “the sole and exclusive right to publish from advance sheets, in the United States and dominion of Canada,” the work to be published serially in the English magazine during the year 1891, and agreed to deliver to Lovell'a complete copy of the work, “either in the form of advance sheets or MS., at least two calendar months prior to the serial completion of such work in England.” In considération thereof, Lovell agreed to pay “for the sole and exclusive tuse of advance sheets .of the said novel in the United States and the dominion of Canada” £20 upon its publication in America. It may be doubted whether the contract contemplated the serial publication of the work in America, as it provides for the delivery of the advance
The decree is affirmed.